FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                   April 19, 2012
                            FOR THE TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                    Clerk of Court

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 11-6331
                                               (D.C. No. 5:10-CR-00313-HE-1)
    GREGORIO MORALES-MARTINEZ,                          (W.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, HOLMES, and MATHESON, Circuit Judges.



         Defendant Gregorio Morales-Martinez pleaded guilty to two firearm

offenses. Although his plea agreement contained a waiver of his appellate rights,

defendant has filed an appeal challenging his sentence. The government has

moved to enforce defendant’s appeal waiver under United States v. Hahn,




*
      This panel has determined unanimously that oral argument would not
materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2);
10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral
argument. This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.


(10th Cir. 2004) (en banc) (per curiam). We grant the motion and

dismiss the appeal.

      Under Hahn, we consider “(1) whether the disputed appeal falls within the

scope of the waiver of appellate rights; (2) whether the defendant knowingly and

voluntarily waived his appellate rights; and (3) whether enforcing the waiver

would result in a miscarriage of justice.” 

miscarriage-of-justice

prong requires the defendant to show (a) his sentence relied on an impermissible

factor such as race; (b) ineffective assistance of counsel in connection with the

negotiation of the appeal waiver rendered the waiver invalid; (c) his sentence

exceeded the statutory maximum; or (d) his appeal waiver is otherwise unlawful

and the error “seriously affect[s] the fairness, integrity or public reputation of

judicial proceedings.” 

omitted).

      Defendant pleaded guilty to two counts, each of which carried a statutory

maximum sentence of sixty months. The district court determined that the

applicable guideline range was 108 to 120 months. The district court was

inclined to have the sentences run consecutively to come within the applicable

guideline range, but the government recommended that the sentences be run

concurrently due to defendant’s substantial assistance in the case. In light of the

government’s request, the district court decided to grant defendant a downward

departure and sentenced defendant to sixty months on each count with the

sentences to run concurrently.

                                          -2-
      Defendant’s plea agreement states that he “knowingly and voluntarily

waives his right to . . . [a]ppeal or collaterally challenge his guilty plea, sentence

and restitution imposed, and any other aspect of his conviction.” Mot. to Enforce,

Att. 1 at ¶8. The agreement further states that he waives his right to appeal or

collaterally challenge the “sentence as imposed by the Court and the manner in

which the sentence is determined, provided the sentence is within or below the

advisory guideline range determined by the Court.” 

the waiver language in his plea agreement, he contends that he

“cannot be said to have specifically and knowingly waived the issue when, at the

time [he] pled guilty, no one contemplated the possibility that the sentences on

the two counts could be run consecutively.” Resp. to Mot. to Enforce at 3.

According to defendant, “[a]t the time of the plea agreement, it was contemplated

that the maximum possible sentence imposed would be 60 months and that any

downward departure would begin with that 60 month maximum.” 

rejected the argument that “a defendant can never knowingly

and voluntarily waive his appellate rights because he cannot possibly know in

advance what errors a district court might make in the process of arriving at an

appropriate 

. As we explained: “The law ordinarily

considers a waiver knowing, intelligent, and sufficiently aware if the defendant

fully understands the nature of the right and how it would likely apply in general

in the circumstances-even though the defendant may not know the specific

                                           -3-
detailed consequences of invoking it.” 

quotation marks

omitted). Defendant, therefore, did not need to know exactly how his sentence

would be determined–including the possibility that the sentences on the two

counts could run consecutively–in order to waive his right to appeal his sentence.

         Moreover, it is clear from the plea agreement and the plea colloquy that

defendant was on notice that: his sentence had not yet been determined, the

district court would make the final determination about his sentence, and once

that determination was made, defendant would not be able to challenge any aspect

of the sentence (except in limited circumstances not relevant here). See Mot. to

Enforce, Att. 1 at ¶¶7-8 (Plea Agreement); 

8-13 (Transcript of Guilty

Plea).

         The district court imposed a sentence that was below the advisory guideline

range and within the applicable statutory maximum. The plea agreement and the

plea colloquy demonstrate that the defendant knowingly and voluntarily waived

his appellate rights and that the appeal falls within the scope of his appeal waiver.

Defendant’s complaint that the district court’s sentence does not effectuate the

intent of the parties does not demonstrate that enforcing the waiver will result in a

miscarriage of justice. Accordingly, we GRANT the government’s motion to

enforce the appeal waiver and DISMISS the appeal.

                                         ENTERED FOR THE COURT
                                         PER CURIAM


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